Victor Boyhan: Welcomes Amendments, Calls for 12-Month Review

Thank you Minister, first I want to welcome you back to the House and I want to thank you, I'm supportive of all these amendments, they're your amendments, they clearly indicate that you listened, you said you would, and you kept it concise, and they primarily are about children and vulnerable people, which were very much the principal concerns of Senators on this side of the House who contributed and spoke, and are the ones that are extensively contributing to this whole debate, so I just want to acknowledge that, I think it's important, we did have, and I won't go into great detail now because I'll talk about it later, we all received a letter from the Children's Ombudsman today, and expressing serious concerns about asylum seeking children will bear the brunt of changes to the international protection legislation, it's covered in the Examiner, and I think he raises many many issues, but I just want to quote two lines from the Irish Examiner, the article that the Ombudsman wrote himself, and I'll quote, complaints to my office show how children seeking asylum are already among the most vulnerable in Ireland, and if the Bill passes in its current form it risks further undermining their rights, well clearly the Ombudsman isn't privy to the amendments that you just brought there now, at least the rationale behind those, so I think that's important to say, and the Ombudsman goes on in his article to say it's important to stress my concerns about the new system are not an endorsement of the way we currently treat children seeking asylum here in Ireland, I have repeatedly sounded the alarm on the inadequate care and protection afforded to these children, and I suppose in summary, look Minister, I want to thank you because I believe you've listened, you've considered to some extent some of the arguments made in relation to these most vulnerable children and vulnerable people which you reference also, so I want to thank you and assure you of my support for your amendments, thank you. So Minister, again we discussed this amendment, and from my understanding of this amendment at the last stage, you didn't really have a particular objection to any of it, you did say that it might not be necessary, but I'd rather have the protection, and I don't think it would do any harm to have this included in the legislation, and what this amendment seeks to do, I'll quote it again, within 12 months of the passing of this Act, the Minister shall produce a report on the treatment of refugees and asylum seekers, B, the report shall analyse the effects of the Act, and include details as to whether immigrants are receiving appropriate legal counselling and are being treated humanely in detention in line with the national law and the European Convention on Human Rights. Minister, this always has to be about the dignity of person, the dignity of people, it has to be about human rights, I very much value my opportunities in the Seanne to always seek to vindicate the rights of people, particularly children and vulnerable people, and I think whatever criticisms may be said of this legislation, I think it's important that we have a review. It's also important to note, Minister, there's a proposal that was agreed by the House here today to guillotine this legislation if we don't conclude it, so what does that tell us? It tells us that there are a very substantial amount of amendments that you have yourself, and I don't seem to have a difficulty with many of them, but you have a lot of amendments here today. There's no other Senator who will be longer here than me that can only speak on the amendment. But I'm speaking on the amendment. Not in relation to the guillotine. Okay, so okay, we won't talk about the guillotine that's been agreed. Okay, Minister, back to the amendment and the amendments that you will have. We will not have an opportunity to speak on many of those amendments, and that presents a bit of a difficulty, but at least if we accept this amendment and the two parts to this, we would have a review in 12 months, certainly in terms of looking at the concerns in relation to the passing of this Act within 12 months. Now Senator MacDoul did indicate standing orders. We discussed this also, you will recall, and that's also relevant, but I think it's prudent. I don't think it's unreasonable. I think it's fair, and I think you are more than prudent and reasonable and a fair politician, and I know this is a very important piece of legislation for you. What I'm seeking to do, Minister, is to say put in a provision that within 12 months of passing this Act, we would review it, and we would see if there were concerns about human rights, et cetera, because I think that's what we all want at the end of the day. We must respect the rights of all people, and that's what I'm trying to achieve in this amendment. Thank you, Minister. Thank you very much. I want to thank Senators Bohan and McCarthy for putting forward this amendment and for their contributions, and I similarly want to thank Senator Stevenson for her contribution. If I can, I'll just reply to them in the order in which they made their contributions. First of all, when you look at the amendment that has been put forward by Senators Bohan and McCarthy, you will see that what they are looking for is that within 12 months of the passing of the Act, I'll produce a report on the treatment of refugees and asylum seekers, and the report shall analyse the effects of this Act and include details as to whether immigrants, which I presume is a reference to refugees, are receiving appropriate legal counselling and are treated humanely, in line with national law and the European Convention on Human Rights. But that's a perfectly commendable motion in terms of the objectives that it seeks to attain. We had a brief discussion about this on the last occasion when I was here at Cahier Lecturing Committee stage, and I'd indicated at that stage that, and I didn't get an opportunity really to elaborate on it, that I believe the Bill as it is drafted at present sufficiently covers the issues of concern from both Senators Bohan and McCarthy. What I wish to specifically do is refer to Part 14 of the Bill, which establishes the Office of Chief Inspector of Asylum Border Procedures, and I know colleagues will have already looked through that, but it is important to point out that there is a new statutory body, a chief inspector, that will be established for the purpose of doing what many respects Senators Bohan and McCarthy are seeking to have done in terms of the amendment they have put in. For instance, if you look at Section 252, which deals with the functions of the chief inspector, it says that the chief inspector shall furnish to me an annual recommendation in relation to the improvement of fundamental rights compliance at designated asylum border facilities. I think the legislation that's in the Bill at present is preferable to what the Senators have proposed in their amendment, because under their amendment I'm the one responsible for the report, I'm the one that's required to ensure that I produce a report. I don't think members of this House or the lower House would believe that a report by me would be sufficiently independent. I'm sure if I hadn't a legislation that I'm the person who will do a report to determine whether human rights obligations are being complied with, Senators would say to me this would be far more preferable if that was done by an independent statutory entity. So it is preferable, I believe, it is done by an independent statutory entity, and that's why I think the provision in the legislation contained in Part 14 about the chief inspector is so important. It's also relevant to look at section 259 of the legislation, and I think this really deals specifically with the issue identified by Senator Boyle and McCarthy, and that refers to the annual report of the chief inspector, and it requires the chief inspector not later than three months after the end of each year, not just in terms of the first year, but at the end of each year, that they have to submit an annual report on the performance of the chief inspector's functions and on such other related matters, and the factors that should be taken, any part of the report to be late for each Oireachtas that would prejudice security would be refused, but it will ensure that there is an annual report of the chief inspector that will be presented to me and that will be then available for examination or questioning by the Oireachtas committee. So I have to say in terms of looking at the amendment that's been put in by the two senators, I think it is preferable in the first instance that there will be a report on a continuous basis rather than simply within 12 months of the passing of the Act, and I think it's also preferable that that report will be done independently by a chief inspector as opposed to me doing that report as well. Obviously the objective of it is to ensure that the treatment of international protection applicants or indeed refugees is in compliance with Irish law and the European Convention on Human Rights. I'm extremely satisfied, Gearelec, that the legislation I'm putting before the Houses is completely in compliance with the ECHR and obviously any domestic responsibilities that we have as well. I think when you look at the legislation as a whole, you can see that it is very much balanced in terms of there is the rights for the international protection applicant very clearly set out. I'm sure if you did an assessment as to how many sections cover the rights of the applicants, a very significant majority would cover their rights, but also there has to be duties that are owed to the state in order that we can adequately process applications for asylum and ensure that asylum applications are for those who are legitimately fleeing persecution and war. We have to have a process in place for that to be secured and I believe the legislation balances that very appropriately. Senator Stevenson also raised the issue of compliance with the ECHR. I can assure her again that it is unquestionably compliant with it. She identified the signature by Ireland, by me, on the 10th of December at the Council of Europe in respect of a proposal for a political declaration that was put forward by Denmark and that was ultimately supported by 27 Member States of the Council of Europe. So to suggest that this is in some respect some partisan or some niche interest group within the Council of Europe is not correct. The majority of Member States were in favour of it, Turkey was against it, I think Azerbaijan might have been against it, but very significant numbers of our colleagues, not within just the Council of Europe, but also within the European Union were in favour of it. What it sought to do is what people are entitled to seek to do as members of the Council of Europe is to seek a political declaration and it was sought in respect of a variety of issues, but the issue that Senator Stevenson has highlighted is in respect of Article 3 of the Convention. As she correctly points out, Article 3 is the provision that deals with torture and inhumane and degrading treatment. Senator Stevenson correctly points out to the fact that Ireland brought a case in respect of torture and inhumane and degrading treatment back in the 1970s. The other interstate case I thought was more to do with Article 2 to ensure that the rights to an inquiry in respect of somebody being killed are being vindicated. But certainly in the early 1970s there was a challenge brought against the treatment by the British government of persons who had been interned in Northern Ireland and the treatment of them whilst they were in custody. This gave rise to cases that are subsequently referred to as the Hooded Men cases. Ireland claimed that the five men, because they had been sensorially deprived, they had to stand up, they had their arms against the wall, there was noise constantly played, with all the characteristics of what we would associate with torture. Ireland took a case, interstate case, to the European Court of Human Rights claiming torture. We lost on torture and we won, however, when it came to inhumane and degrading treatment. I have to say to you, I would have thought most people, when they come to interpret or look at Article 3, when it was about torture or inhumane and degrading treatment, that's the type of treatment that they would consider as being violated by Article 3. The reason why Denmark and 26 other Member States put forward a request for the Council of Europe to bring in a political declaration in respect of Article 3 is that since then, the European Court has interpreted Article 3 in a very broad manner, if I can just use that as some objective language, very broad manner. For instance, there have been a number of cases of the European Court of Human Rights, whether it's Papashvili or MSS v. Belgium and Greece, where countries who are members of the Council of Europe found it extremely difficult to remove from their jurisdiction persons who had come into their country, had been convicted of serious criminal offences and who they then wanted to deport and move out of their country. For instance, in Papashvili and MSS, they were told by the court that there were circumstances where people can't be moved. For instance, if the medical treatment they're going to receive in the country to which they're going to be deported to was less than the medical treatment that they're receiving at present in the country which wants to deport them, or that the other accommodation might not have been of the same standard. Now, Senator Stevenson may believe that that is an example of inhumane and degrading treatment. I have my doubts in respect of it and I certainly think that the political elected representatives of the Council of Europe are entitled to put forward a political declaration and because the court is a, I suppose, a living court, it takes into account political declarations when it comes to its interpretation of articles within the Convention.